Is It Possible For Roe v. Wade To Be Overturned?

The simple answer to the title question is that Roe v. Wade can be overturned if the case is accepted by 4 members of the Supreme Court for review, and 5 members vote to declare it unconstitutional. As of this time there are 5 conservative and 4 liberal members on the court.

But, as reported in many newspapers, the road to overturning Roe is filled with minefields, precedent, strong societal sentiment, legal maneuvering and the consciences of nine extraordinary judicial scholars who are not blind to the needs of America.

The first area to consider is society. Is our country prepared to undo the overwhelming impact of Roe? No way in the mind of many experts. Not every woman favors the right of women to choose, but it’s a good bet than far more than half do. This group will be mobilized if Roe is challenged directly.

Women proponents are much more vocal, organized and determined than their opponents. And, it appears men are leading the charge against abortion, and women who oppose it are not so anxious to declare themselves publicly.

Politicians must also walk a fine line when it comes to abortion, especially female pols. There appears to be a stigma associated with women against the right to choose. And it’s likely that their young daughters who are overwhelmingly in favor of a woman’s right to choose are pressuring their influential moms.

Given the political turmoil that the US has experienced relating to the current administration and Clinton’s defeat in 2016, a reversal of Roe would surely cause a great political and societal backlash. Protest and marching could become violent.

You may be asking why societal reaction is relevant. After all, SCOTUS merely needs a case to judge and 5 members must vote to overturn the abortion law that was decided nearly 50 years ago. The fact is that the justices are mindful of actions that will adversely impact society. From time to time antiquated laws are changed, but they are few and far between. In most cases significant societal pressure made it wise for the court to make amends.

In the press a lot is being discussed about the mood of the courts. Some experts are saying that certain judges (including Chief Justice Roberts) prefer to make broad changes incrementally, and Roberts is certainly in a position to influence both conservative and liberal judges in this regard.

So it would not be a surprise if Roberts encouraged his colleagues to consider peripheral issues relating to abortion. In a sense, if existing law is anathema to a judge, he or she may choose to address it by making new law on the fringes of the main issue.

A wholesale decision: “Abortion is unconstitutional and illegal in the US” is not going to happen in the near term.

And finally there is stare decisis, the precedent issue that is a cornerstone of SCOTUS tradition. Every recent judge confirmed to the court said under oath that respecting the decisions of previous courts is critical.

This means that changing settled law should only occur if there is a great change in societal attitudes and/or circumstances. Things like slavery, prohibition of alcohol, segregation and the right to vote are some of the issues that rise to such a level. Abortion, in the writer’s opinion, does not because the country is split on the issue.

Many believe proponents of abortion should dial down the drama notwithstanding the new Alabama law that makes all abortions illegal. It will be declared unconstitutional and will not set any new precedent. It will be scorned by a significant majority of Americans as a political ploy that has no traction in the country.

However attacks on lower level issues such as limiting the number of abortion clinics in a state, waiting periods, mandatory abortion education, etc. will be front and center. If these cases gain support, abortion itself will eventually be on the docket.

 

 

Is Roe v. Wade In Jeopardy?

The confirmation of two conservative judges to the Supreme Court has reignited the abortion controversy. Abortion proponents are concerned that the new conservative majority will attempt to overturn Roe v. Wade.

Roe v. Wade was a 1973 Supreme Court decision that legalized abortions early during a pregnancy based upon the Fourteen Amendment, which speaks to the right of privacy. SCOTUS amended the law in 1992. It now states that restrictions on abortion are unconstitutional if they place undue burden on a woman seeking abortion before the fetus is viable. The federal law has been attacked from every perspective in actions by individual states.

Proponents and opponents of abortion have greatly contributed to the extraordinary anxiety and agitation affiliated to this social issue. The status of the unborn fetus is a critical national consideration. Is a fetus a human being or does it become a person sometime during the nine-month gestation period?

There is wisdom and logic on both sides. For years Americans have fought over the rights of the fetus and the rights of the woman. One thing is for sure. The solution to this dilemma is not at the beginning or the end of the fetus’ cycle.

Let’s break down the issues. First, A woman’s rights. A very strong case can be made that a woman should be the master of her own body. After impregnation she cares for the fetus from conception to birth and thereafter. Her diligence and love will have a great impact on the health of the child should the fetus go full term. But is the woman an island?

The creation of a fetus is not possible without a contribution from a male. The child that will eventually be born is half his or her mother and half the father. It’s a reasonable question whether sperm donors should have a say in the ultimate decision to abort. This argument carries little weight in the current controversy.

What rights does a fetus have? Is it a person with “unalienable rights,” including the right to “life, liberty and the pursuit of happiness?” In other words is the federal government responsible for protecting the rights of the fetus as it does any citizen? It’s a good question and offsets, to a degree, the issue of a woman’s right to privacy. Should the pregnant woman be the sole judge of whether the fetus survives?

In Roe v. Wade the decision was made that the woman does in fact have virtually all of the power to decide whether her fetus should survive and become a living American.

On the other side of the coin are the opponents of abortion. Their perspectives are greatly impacted by religious dogma. It’s convenient if not totally accurate for them to say a fetus is a living entity. It’s a person from the moment of conception, should be protected by the federal government and to abort the fetus is murder.

Once again the issue of privacy of the woman is front and center. Should the government have a say in the survival of the fetus? The counter argument is that a fetus cannot survive outside of the womb until a certain number of days pass. So does the fetus mystically transform from a non-living entity to a living entity on a date certain? Do all the benefits of being an American kick in on a random date?

It’s important for everyone to realize that Roe v. Wade established a precedent that the ultimate compromise can be a negotiated time during gestation when the fetus can survive outside of the womb. This precedent is protected by stare decisis, or SCOTUS’ tradition of respecting decisions of previous courts. This could mean that all the turmoil about the new conservative court overturning Roe is moot. And not withstanding the current justices’ bias against abortion, tradition and precedent will win out and continue to support a woman’s right to choose.

But this is not the end of the story. The bid and ask for the competing sides is great and very debatable. Proponents of abortion believe that a woman’s right should have no limits. They believe a woman should be able to terminate from conception until birth.

Likely, SCOTUS will eventually lock in a date. But will compromise result in acceptance by all? Will an opponent who thinks that life begins at conception ever accept that a woman can decide before the end of the second trimester to have an abortion? Will a proponent ever give up the crusade for a woman’s total control of a decision to abort?

And then there are all the side battles taking place across the country in liberal and conservative states. Opponents are tying to make it difficult for women to legally obtain an abortion by assigning restrictions and requirements. These include mandatory counseling, waiting periods, limitation on the number of clinics that do abortions, capping health care aid, etc. All these indirect roadblocks must end. Individual states must eventually yield to a national policy that gives the woman the right to choose.

On the other hand the radical proponents are pushing for more latitude that include late term abortions. This most radical perspective would allow the abortion of a fetus very close to the birth date. The vast majority of Americans, including many proponents, are against this procedure unless the health of the woman and/or the child is at stake.

It may be a naïve perspective but it appears that the right of a woman to choose is locked in. Nuisance efforts to change this will ultimately fail because Roe is part of our culture. However it is important that neither side push to make changes that cause the other side to respond in kind, Let’s lock up an abortion law once and for all.I

An Abortion Recap

Considering that the US is the most advanced society in the world, it’s odd that we struggle so extensively with basic issues relating to procreation. Our nation is dependent upon new births to sustain our culture and way of life. Yet we have been unable to establish a consensus on some important issues affiliated with childbirth and abortion.

We need a federal policy that accommodates the principles of the two competing groups focused on birthing, one that believes women should have total freedom to decide if they will give birth, and one that believes that unborn fetuses are living humans entitled to protections afforded to every American by the Constitution.

The purpose of this essay is not to change anyone’s beliefs or principles about abortion. Rather it will delineate the obstacles that have dogged the establishment of federal abortion policy in the country.

Abortion advocates believe women should have absolute control over the entire reproductive process. The ability to have an abortion from the moment of inception to the birthday is the gold standard for this group.

Pro-life proponents believe that life begins at inception and to abort a fetus at any time for any reason is murder.

On January 22, 1973, the Supreme Court, in Roe v. Wade, set guidelines for the accessibility of abortions. “Abortion is legal but may be restricted by the states to varying degrees.” States have separately passed laws to restrict late-term abortions, require parental notification for minors and mandate the disclosure of abortion risk information to parents prior to the procedure.

Despite calls at the federal level to weaken abortion rights, New York State recently enacted a law, The Reproductive Health Act, that reconfirms that abortions are legal within 24 weeks of the start of a pregnancy or at any time when necessary to protect a woman’s life and/or her physical or mental health. New York wanted to ensure the right of abortion even if the Supreme Court overturns Roe v. Wade prospectively.

Additionally abortions by authorized health professionals, including physician assistants, are now legal. And, the ability of a woman to obtain a late term abortion in New York has been made much easier if the woman can get approval of her physician. This literally means that an abortion, days before birth, can be arranged if a doctor believes that the birth would put undo stress on the woman. Most pro lifers find this provision unacceptable and too lenient. As an aside, in 2015 1.3% of abortions performed in the US occurred after the 21st week of gestation.

Both sides in the abortion controversy have ongoing efforts to agitate their opponents and gain advantages. Advocates are encouraging new laws similar to New York State’s, which is among the most liberal in the country. At the same time states that find abortion anathema are nipping at the edges of the controversy by making it more difficult to have abortions by requiring longer waiting periods, notifying parents, limiting where and by whom abortions can be obtained and so on.

The sword of Damocles is hanging over abortion advocates as the Supreme Court becomes more conservative. This should be an incentive for pro lifers to lock in a policy now. Notwithstanding this fact, prospective candidates for the Court in recent years have reiterated that stare decisis will greatly impact any decisions they make as a Supreme Court justice. Stare decisis means that judges look to previous similar issues to guide their decisions. These past decisions are known as precedent. Since Roe v. Wade has been legal for decades, it would be highly unusual for a new Supreme Court to defy this precedent and attempt to ban abortions, but it is possible.

There are many details that need to be worked out before this country ever enacts a federal abortion law. The cut off for a woman to make an abortion decision is paramount. According to most, it should be based upon the moment a fetus could be viable outside of the womb. However the target date may change with new technology.

Late-term abortions are anathema to many people including some liberals, except for reasons of health. Since so few take place each year, it should not require any great concessions by either side to settle this issue. However if past debates in Congress are a barometer of impending problems on this matter, it will not be easy to establish a mutually acceptable policy.

Since the current state of the abortion law allows abortions until the 24th week, and late-term abortions are minimal, Congress has a good start. The issue is whether pro-lifers will ever give up their crusade to ban abortions or continue to make life miserable for women in certain states.